by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

CONDOMINIUM; COMMON AREAS; PHASING: Improper removal of land, in an attempt to create two separate condominiums, made the appurtenant easement, from one condominium to the other, non-existent as a matter of law.

Levy v. Reardon, 683 N.E.2d 713 (Mass. App. Ct. 1997).

A newer condominium ("Summit") had built on property that originally had been common area of a preexisting condominium. Summit obtained an easement for use of Hilltop's pool. Later, Hilltop refused Summit access to the poll, and Summit brought this action seeking declaratory and injunctive relief. The trial court declared that the swimming pool easement was valid and enjoined Hilltop owners from interfering with Summit owners right to use the pool.

On appeal, held: Reversed. The court posited one little reason and one very big reason for its result:

First: Massachusetts condominium statutes have no specific provision for creating "phased condominiums," but courts have sanctioned a rather "rough and ready" method of creating such condominiums by providing for them in the master deed of the first such condominium. The court studied the master deed in this case and concluded that it may have purported to sanction the development of a additional condominium on identified adjacent property, but said nothing about the reservation an easement over the original condominium property. What the deed did not authorize could not be carried out without the unanimous consent of the old condominium owners. Consequently, there was no valid easement.

Instead of stopping there, however, the court fired off a much larger salvo. It held that when the land on which Summit is located was removed from Hilltop's common area, the division of property violated Massachusetts law (G.L. c. 183A, § 5(c)) because Hilltop did not obtain the consent of all Hilltop lien holders and did not ask the Hilltop unit owners for approval of the removal. Although it might have been permissible to add new condominium owners as part of the original Hilltop condominium, it apparently was not consistent with the "phasing" permitted under state law to create a whole new condominium in which the old owners would have no ownershihp rights whatever. Therefore, the removal of property was invalid. As a result, the title to the removed land remained with Hilltop, making the appurtenant easement invalid due to the unity of title in Hilltop and Summit.

Comment: Obviously the second statement is far more sweeping, and the court gives us no clue as to what it expects everyone to do next. It would appear that, absent adverse possession, Summit owners do not have the percentage interest in the common elements of the Summit condominium that they thought that they had. Further, Hillcrest owners own at least part of the Summit interests. Do Summit owners, on the other hand, have interests in Hillcrest, because the only valid way to add the Summit development was as an addition to Hillcrest? This would make sense, but the court does not discuss this at all, leaving the parties to stew in their own pool water.

Comment 2: This appears to be a companion case to The DiBiase Corp. v. Lisa Jacobowitz & others, Trustees, 682 N.E.2d 1382 (Mass. App. Ct. 1997), reported as the DD for yesterday, February 3. In that case, the court held that a developer who deeded property as part of a phased condominium did not own that property when the condominium phasing later was abandoned. This case further suggests that the developer also lacks the ability to create a "phasing" that involves a whole separate condominium. It suggests that if a developer desires to have the flexibility to add land to the condominium, it must make the decision that that land will be irrevocably part of that original condominium property, for better or worse.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Woodward at the ABA. (312) 988 5260 or woodwars@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.